Friday, November 27, 2009

Individual billing data at a city utility is public if it doesn't reveal information about individual persons, the state attorney general's office has ruled.

The open records decision, which has the force of law but could be appealed, was requested by Clay Moore of Danville, who often requests records from public agencies in Boyle County but has never fild an appeal with the attorney general, for whcih there is no charge. He asked the city water and sewer department for bills of Centre College,Ephraim McDowell Regional Medical Center and Central Kentucky Ambulatory Surgery Center LLC.

The agency declined to release the records, citing a 1996 attorney general's decision. The latest decision overturned that one, saying it was “erroneously postulated on the notion that equal privacy interests could be attributed to aggregate information contained in a water bill for a customer with multiple unidentified users. . . . The interest of the public in ensuring that the department has, and fairly enforces, a uniform billing structure for all customers outweighs the nonexistent privacy interest implicated by the disclosure of the requested billing records.”

The 1996 decision was issued when Ben Chandler, now 6th District U.S. representative, was attorney general. The latest decision, which said the office has the right to change its mind, was written by Assistant Attorney General Amye Bensenhaver and approved by Attorney General Jack Conway. Moore "said Monday he is pleased with the ruling and wants to obtain the information to verify whether the large utility customers in question are being billed properly for their usage," reported David Brock of The Advocate-Messenger. (Read more)

Friday, November 13, 2009

One of the more routinely abused exceptions to the Kentucky Open Meetings Act is the one that allows closed sessions for "proposed or pending litigation." Today the state Court of Appeals upheld a lower-court ruling that kept the Lexington-Fayette Urban County Council from using that as an excuse to close a meeting "to discuss the city's response to a request before the state Public Service Commission by Kentucky American Water to build a $162 million treatment plant and pipeline," reports Andy Mead of the Lexington Herald-Leader.

The Herald-Leader objected to the closure, prompting a hearing in which Circuit Judge Sheila Isaac agreed with the newspaper and ordered the meeting to remain open. "The city later asked Isaac to reconsider, but the judge dismissed the case without ruling on the litigation exception' issue," Mead reports. "The city took the case to the appeals court, seeking a blanket ruling that the exception applies in all administrative proceedings."

The unanimous three-judge panel noted that the law requires its exceptions to be "strictly construed," and "said that the city failed to show that the same set of circumstances would occur again," Mead reports. (Read more)

Monday, November 9, 2009

The state attorney general’s office has ruled for the second time in a month that the Joint Board of Ethics for Bardstown, Fairfield and Nelson County has violated the Open Records Act.

The latest ruling came in a follow-up to last month’s citation of the board for denying records requested by local resident Marge Brumley about an ethics complaint she filed with the board. Brumley’s husband, Kevin, then asked to see records regarding the disposition of that ethics complaint, which the board refused, citing a local ordinance about cases that had not been finally determined.

The attorney general’s ruling said such ordinances “are of no legal effect to the extent they purport to override the unambiguous legislative policy supported by the Open Records Act.” The ruling also said that “final action” in such cases included a decision to take no action, which the board had done.

Attorney General Jack Conway also ruled in No. 09-ORD-192 that the record does not support the conclusion that the Murray-Calloway County Economic Development Corp. is a public agency because it has received only 20.57 percent of the funds it has expended in the Commonwealth in the current fiscal year from state or local authority funds. The decision "said that the EDC would have met that definition in fiscal year 2008 because it received a $1.6 million from the state," Hawkins Teague of the Murray Ledger and Times reports. The threshold for being a public agency is 25 percent. Lexington attorney Matthew Malone had requested records relating to EDC President Mark Manning's arrest on a DUI charge he received while in Frankfort. "Manning pleaded guilty to the charge and paid a fine," Teague reports. "He also issued a statement in August apologizing for his actions." (Read more)

Conway also said the McCracken County Jail violated the Open Records Act by failing to respond to an inmate’s request for records, and to the attorney general’s inquiry in the case. The inaction “cannot be allowed to continue,” and the jail remains in violation of the act, the ruling said. Here are other recent attorney general’s rulings on open-government issues, including two involving Butler County government:

09-ORD-191: Butler County Fiscal Court violated procedural requirements of the Open Records Act in responding to request for records relating to a magistrate's expense reimbursement, health, insurance, retirement, and timesheets. Although paucity of records produced raises questions about recordkeeping practices, such practices are beyond the scope of the AG's review under KRS 61.880(2).

09-ORD-187: Because the Butler County Sheriff's Department mailed a written response to a request within three business days, and the AG's office cannot resolve the related factual issue which prompted the appeal, the Attorney General has no basis upon which to find a violation of KRS 61.880(1). The Department violated KRS 61.872(4) in failing to provide requester with contact information for the official custodian of the agency in possession of certain records which are partially responsive.

09-OMD-188: The state Board of Chiropractic Examiners did not violate KRS 61.815 regarding required notice for a closed session when general notice of the nature of the business was given. Under 05-OMD-017, discussions of a quasi-judicial body at the charging stage are "deliberations" within the meaning of KRS 61.810(1)(j). One board member's whispering did not violate the Act unless it pertained to public business. KRS 61.840 does not guarantee that persons videotaping a public meeting may place cameras and microphones wherever they wish, or that the faces of all members be turned toward the public at all times when discussions are audible to those present.

Full texts of the decisions can be found through Links of Interest at the bottom of the KOG Blog.